This blog provides updates on important developments in family law in British Columbia and news about changes to the legislation, court procedures and court rules applicable to family law cases and is curated by Collaborative Divorce Vancouver

30 April 2014

"Peace officer enforcement" orders, sometime called police officer enforcement clauses, are frequently used in family law cases when one or both parties anticipates problems enforcing a parenting schedule in the future. These orders are provided for in the domestic relations legislation of most provinces.The idea with orders like these is that in the event a child is wrongly withheld from a parent, the aggrieved parent will phone the police, the police will swoop in on the strength of the order, take the child and return the child to the parent who is entitled to be with the child. Unfortunately, it rarely works this way in real life. In an article I wrote for Canadian Family Law Quarterlythat surveyed the views of family law lawyers across Canada, lawyers complained that: police sometimes refuse to enforce access orders, even when the order directs them to enforce it; some departments have a policy against enforcing access orders; police will generally do what they can to avoid enforcing access orders; and, the courts rarely do anything significant by way of follow-up, such as finding a parent in contempt of court. (For those of you with access to HeinOnline, the article is called "Enforcing Orders for Access" and the cite is 32:2
CFLQ 173.) The frustrations of lawyers are echoed by both judges and parents.Patterson v Powell
In Patterson v Powell, Mr. Justice Pazaratz of the Ontario Superior Court of Justice was asked to endorse a final order that the parties agreed to, drawn from minutes of settlement executed a few months earlier. The order included these clauses:

12. The Hamilton Police Service, OPP, RCMP or any other police force having jurisdiction shall enforce the terms of these Minutes of Settlement.

13. If either of the parties or any other person on their behalf, breaches any of the terms of these Minutes of Settlement, then a Peace Officer shall provide assistance to ensure that the offending party complies with its terms. Before enforcing the terms of these Minutes of Settlement, a Peace Officer must first ensure that the party has been served with a copy of these Minutes of Settlement. If not served, the party must be shown a copy of the Minutes of Settlement by the Peace Officer and be given a reasonable time to comply with the terms. If the party fails or refuses to comply with these Minutes of Settlement the Peace Officer shall do such lawful acts as may be necessary to give effect to its terms.

(This is pretty much along the lines of what would be said in a British Columbia peace officer enforcement clause under s. 231 of the Family Law Act.) The judge declined to make the order without an explanation, even though everyone agreed to it, and asked the parties and their lawyers to appear in court and explain why the clauses were necessary. The argument which ensued plainly gave the judge the opportunity to discuss, in a larger, more principled manner, the problems with peace officer enforcements orders generally and the rare circumstances in which such orders should be made, and Justice Pazaratz's decision in this case should be required reading for anyone thinking about applying for a peace officer enforcement order.Justice Pazaratz begins his discussion on the issue noting the two circumstances in which peace officer enforcement clauses are included in court orders:

"11 The first deals with the present: An existing situation. It usually involves some urgency (for example, an abduction) where a child needs to be retrieved from one party and transferred to the care of another. The objective may be to enforce immediate compliance with an existing order, or to quickly remove the child from potential harm or threat of abduction.

"12 The second scenario deals with the future: a more general concern that on some unspecified date a party may not comply with a custody or access order, and that police assistance may be required to ensure the scheduled exchange of a child from one party to another. Typically, the extent and frequency of such police involvement cannot be determined ahead of time."

In my experience, this is entirely accurate.
The problem with concerns about the future, even when they are based on past instances of non-compliance or past threats to withhold the child, is that they anticipate that someone will breach the order  a very serious action with potentially serious consequences. However, the judge observes that peace officer enforcement clauses are actually rather commonplace. (This was true in British Columbia too under the old Family Relations Act, however under the new Family Law Act, peace officer enforcement clauses are an extraordinary remedy reserved for circumstances when there has already been a breach of an order and the court is satisfied that nothing else will secure the breaching party's compliance.) Justice Pazaratz writes:

"17 ... As in the case before me, many lawyers and parties seem to regard such requests as both perfunctory and harmless. The implicit assumption seems to be that while all court orders must obviously be followed, there is reason to doubt that one or more of these parties will follow this particular court order."18 In that context, the police enforcement clause takes on the nature of an instant remedy for anticipated future contempt of court. A fail-safe precautionary measure 'just in case' somebody misbehaves ... the parties in this case want to know that there will be 'immediate consequences by calling police'."

Of course, as Justice Pazaratz observes, this begs a number of fundamental questions:

Why does the court make orders about children if it is not confident that the orders will be obeyed?

Why would the court give custody or access to a parent if it believes that the privilege will be abused?

Why aren't creative alternatives to access problems  like parenting coordination, reducing the number of exchanges and requiring the use of intermediaries  required when compliance are anticipated instead of peace officer enforcement clauses?

How does the court balance the benefit of enforcement against the distress caused to the children when the police respond to a dispute between their parents?

Dwelling further on this last point, the judge notes that children's perceptions of police will impact on their response to police intervention. Younger children, says Justice Pazaratz, know that the police deal with "bad people" and "sometimes take people to jail," which may cause them to worry that a parent is in trouble with the police. Older children may be embarrassed by the police presence, resent their parents for letting things get out of hand or feel increased pressure to ally with a parent.
This leads to the court's first conclusions on applications for such orders (important bits in bold):

"24 ... when ongoing police enforcement clauses are requested as a long-term compliance strategy ... courts should insist that parties take available time to fully canvass less destructive and more creative (perhaps even therapeutic) alternatives. Before considering a long-term or permanent police enforcement clause (presuming the latter is even available as an option) courts should require evidence of the potential positive and negative impact of police intervention on each member of the family unit — most particularly, the children themselves:

a. Has the child already experienced police involvement in family disputes?

b. How is the child likely to perceive or react to future police involvement?

c. Will police presence during access exchanges increase pressure on children to ally themselves with one parent or the other?

d. Does the child have any special needs or vulnerabilities?

e. Have any members of the family had involvement with the criminal justice system or child protection authorities?

f. Have there been previous police calls to the home relating to other complaints, such as domestic violence? Will this impact on dynamics if police attend for a more benign peacekeeper role during access exchanges?

g. How are these particular parties likely to respond to interaction with police? Could any of the parties be regarded as being 'anti-police' — such that police intervention might inflame, rather than defuse the situation?

h. Are there mental health issues the police may have difficulty recognizing or responding to?

i. Is there any history of either party making unfounded complaints to police or other community agencies, for malicious or strategic purposes?

j. Will police involvement facilitate or compound parental alienation? Will calls to police be used to manipulate children, instill fear, or garner sympathy?

"25 Other questions need to be addressed:

a. How often and how long is the police enforcement clause to be invoked? For a specified period of time, or indefinitely? Once or on an unlimited basis? Monthly? Weekly? Daily? Every visit?

b. Should a party invoking a police enforcement clause be required to return the matter to court, or at least initiate a request for some alternative dispute resolution?"

The judge's second conclusion, at paragraphs 30 to 33 of his judgment, is that if the police are to be involved, they should be served with notice of the application and, whether given notice or not, when such orders are made the police have standing to apply to court to vary them or set them aside. However, if the police have any concern with such orders, they have an obligation to bring the matter, and the parties, to court as soon as possible.Returning to the potential harm to children resulting from peace officer enforcement orders, Justice Pazaratz reviewed the principles enunciated in some 40-odd decisions on applications for peace offer enforcement orders from across Canada  which alone make His Lordship's judgment worth reading  for the propositions that:

Parental conflict is a major source of harm for children.

Children should generally be protected from the "drama" of police enforcement of a parenting schedule.

The applicant for peace officer enforcement orders must prove that the order would be in the best interests of the children.

Factors such as a threat to the safety of the children or a breach of the peace may suggest that such an order should be made.

Peace officer enforcement orders may have a negative impact on children, and may frighten or traumatize them. It is not in the best interests of children that police be in attendance at exchanges between parents.

Such orders are an "undesirable tactic to give to either parent."

Peace officer enforcement orders are exceptional orders and should be made sparingly and as a last resort only. The court may refuse to grant such orders even when both parties consent to the order.

The court may, on the other hand, order that police must not be involved in access disputes.

What is to be done, then, when a parent breaches a parenting order? Says the court:

"73 If the non-compliance is isolated or rare, perhaps we should afford an opportunity for explanation and review before presuming the worst ...

"74 And if the non-compliance is chronic, we're likely dealing with a problem police can't fix anyway. At best, police enforcement amounts to a band-aid solution. If a parent is consistently defying a court order, there's a good chance the order itself needs to be changed to deprive the offending parent of the opportunity for more unilateral action or defiance.

a. If access is being denied, perhaps custody needs to be changed.

b. If access is being abused, perhaps it should be reviewed, supervised or suspended.

c. If neither party can behave themselves during access exchanges, perhaps both parties should have to attend a supervised exchange facility. It might be inconvenient for the parents, but it would be a lot less traumatic for the child.

d. If we don't have confidence the parties will comply with final orders, perhaps we shouldn't be making final orders. Sometimes parents are motivated to behave if they know they'll be coming back to court — especially if they know they will be returning to see the same Judge."

After these comments on the options available to creative decision makers, Justice Pazaratz reaches his third set of conclusions, on the court's larger role in family law matters as the custodian of parties' disputes, burdened with a responsibility that extends beyond the moment of judgment to contemplate the future:

"77 ... judges have an obligation to craft comprehensive, holistic and durable court orders which have a likelihood of success and compliance. High conflict files need to be identified and given special attention. While disputes may inevitably arise, courts have a responsibility to anticipate problems and build-in dispute resolution mechanisms — rather than hand the mess over to police to sort it out.

"78 If a judge anticipates future disputes or non-compliance, the court may wish to remain seized of the matter, and establish a framework to quickly deal with disputes — including contempt proceedings — to ensure that the parties clearly understand expectations and consequences.

"79 In the absence of ongoing judicial intervention, and serious consequences for disobedience of court orders, long-term police enforcement clauses may prove to be both ineffectual and potentially counter-productive. Non-compliant parents are unlikely to be influenced by repeat police visits to their homes; but children are likely to be deeply (and negatively) influenced."

Needless to say, the parties' consent application for a peace officer enforcement order was dismissed as Justice Pazaratz was not prepared to "rubber stamp"  his words  their minutes of settlement.

"82 While it's reassuring that neither party wants to have to come back to family court, it would be more reassuring if they could agree upon a civilized and child-focussed method of addressing custody/access problems which they seem to anticipate."

Conclusion

This judgment is one of those rare, wonderful judgments, treatises really, where the facts of a particular application motivate a judge to provide a general discussion on a particular issue or problem, often one that has been on the judge's mind for some time. Similar judgments that spring to mind are the decision of Mr. Justice Bouck of the British Columbia Supreme Court on the evils of summary trials in Chu v Chan, and the decision of Associate Chief Justice Rook of the Alberta Court of Queen's Bench on freemen-on-the-land in Meads v Meads.

In Patterson v Powell, Justice Pazaratz demands that the bench and bar pay much greater attention to the frivolous use of peace officer enforcement orders. He observes that such orders skeptically imply that the parties will be unable to work through their disagreements and that one or both of them are unlikely to comply with its terms, and that when peace officer enforcement orders are made, their execution risks entrenching the parties' conflict and causing serious, long-lasting harm for the parties' children. Where problems surrounding a parenting schedule seem likely, Justice Pazaratz asks that alternatives to peace officer enforcement be considered first, including requiring parenting coordination, supervised exchange of the children and the court seizing itself of future disputes; peace officer enforcement orders must be reserved as a last resort.

When the court is asked to make a peace officer enforcement order, the applicant should provide evidence that:

there is an immediate problem that the police must rectify;

the safety of the children is threatened; and,

the order is in the best interests of the children rather than the convenience of the parties.

The court hearing the application must consider the following circumstances in deciding whether to make the order sought:

Has the child already experienced police involvement in family disputes?

How is the child likely to perceive or react to future police involvement?

Will police presence during access exchanges increase pressure on children to ally themselves with one parent or the other?

Does the child have any special needs or vulnerabilities?

Have any members of the family had involvement with the criminal justice system or child protection authorities?

Have there been previous police calls to the home relating to other complaints, such as domestic violence? Will this impact on dynamics if police attend for a more benign peacekeeper role during access exchanges?

How are these particular parties likely to respond to interaction with police? Might police intervention might inflame, rather than defuse the situation?

Are there mental health issues the police may have difficulty recognizing or responding to?

Is there any history of either party making unfounded complaints to police or other community agencies, for malicious or strategic purposes?

Will police involvement facilitate or compound parental alienation? Will calls to police be used to manipulate children, instill fear, or garner sympathy?

How often and how long is the police enforcement clause to be invoked?

Should a party invoking a police enforcement clause be required to return the matter to court, or at least initiate a request for some alternative dispute resolution?

Although British Columbia's new legislation imposes important additional requirements that must be met before peace officer enforcement orders are made, Justice Pazaratz's learned and sensitive discussion on the subject is an important reminder about the questionable utility of such orders and of the potential harm they may cause to the parties and their children.

In a new resources page on its website, beneath the compelling banner "Law. You. Check it out.", the CBA says:

"An important part of improving access to justice is to ensure people have the information and tools they need to avoid legal problems in the first place, or to prevent those problems from becoming bigger than they might have been. As part of the CBA’s Reaching Equal Justice initiative, CBA is offering 6 Legal Health Checks for the public. ... The goal of the Checks is to encourage people to recognize legal problems early, and to take action when they do identify them. For lawyers, these materials are a way to start conversations with people about the law, how to get legal help and how to work effectively with a lawyer."

The "checks" are smartly-designed, one- or two-page documents that provide cursory information about different legal issues and encourage people to get legal advice. Five Steps to Legal Wellness (PDF), for example, tells people to deal with legal problems when they come up, keep paperwork like contracts, get help right away, get advice from a lawyer and remain calm when discussing the problem. Heady stuff.

On family law subjects, On My Own: Youth(PDF) says that sex without consent is a crime, warns against sharing explicit photographs and warns that "having a baby means financial and other consequences for both parents until the baby grows up." How to Avoid Surprises(PDF) cautions that being in a romantic relationship can have consequences and encourages people to get legal advice "before you live together, before you have a child, before you get married, when your marriage or common-law partnership is ending."

Breaking Up(PDF), a concise one-page document, talks about the financial consequences of separation and encourages people to "speak to a lawyer when you are calm" and to use the lawyer for "legal advice, not counselling." A companion sheet, Breaking Up: Parenting(PDF), another one-pager, tells people that "by getting legal help with parenting decisions" they can focus on children's needs, avoid conflict, protect themselves and find lasting solutions.

I'm a staunch supporter of public legal information and public legal education, but with the greatest of respect I'm not sure what what the six checks are going to accomplish, or whether they will "encourage people to recognize legal problems early, and to take action" as intended. The materials on family law matters are brief and insubstantial, and provide little by way of legal information except to recommend speaking to a lawyer. Of course everyone with a legal problem, real or potential, ought to speak to a lawyer, but here is what Canada's Chief Justice said when addressing an access to justice conference in Toronto in February 2011:

"Do we have adequate access to justice? It seems to me that the answer is no. We have wonderful justice for corporations and for the wealthy. But the middle class and the poor may not be able to access our justice system."

And there's the rub.

Tax Matters Toolkit

The new material from the CBA's national family law section, a group for members who practice family law, is a resource called Tax Matters Toolkit: Separation and Divorce(PDF) that is published in two versions, one aimed at family law lawyers and one aimed at their clients. The client resource is short but jam-packed with useful information about the tax issues that come up when a relationship breaks down. It talks about:

knowing when potential tax issues are worth the cost of speaking to a tax specialist

the CRA's definitions of important terms like "child," "common law partner," "principle residence," "separation" and "shared custody"

sharing RRSPs and other kinds of pension plans and pension funds

The resource also provides a list  complete with links!  of important CRA forms and describes what the forms are meant to accomplish.

The resource does not talk about common but very complicated tax problems like tax arrears and potential taxes owing for present and past years, planning spousal support for the maximum tax advantage or sharing the value of family companies, but that's entirely understandable. Those issues can be very, very complicated and generally do require expert advice.

21 April 2014

I was recently talking to a friend who's going through an unpleasant separation and now finds herself having to start a claim in the British Columbia Supreme Court. She had some questions about the orders she should be asking for in her Form F3 Notice of Family Claim, and I realized that the forms aren't always easy to figure out, particularly when it comes to deciding on the orders you want the court to make.

In this post, I'll review the Form F3 Notice of Family Claim, used to start a claim in the Supreme Court, and the Form F5 Counterclaim, used by someone one the other side of a claim to describe the orders they think the court should make. These forms are pretty much the same; what I say about one will apply to the other, except for the first part of the Notice of Family Claim which is very different from the first part of the Counterclaim. I won't talk much about the fill-in-the-blanks parts except where they might be confusing.

The Form

The style of cause

The style of cause is the top part on the first page of the Notice of Family Claim, where it says the court file number, the name of the court registry, your name and the other party's name, and "In the Supreme Court of British Columbia." This information will be given, in the same order, on all of the court forms you or the other side will use.

You are supposed to type out your full name and your ex's full name, including middle names. But here's a tip. If your names are spelled wrong in your marriage certificate, type out your names exactly as it says on the marriage certificate. Add "also known as" behind the misspelt name, and then type out the property spelling. For example, "John Quentinn Smith also known as John Quentin Smith." Not using the names given on the marriage certificate can cause problems when you're asking for a divorce order.

Paragraph 2: "Spousal Relationship History"

You only need to fill out the parts that apply. If you were never married or never got divorced, for example, leave those check boxes blank and don't add any dates. If you and the other party never married and never lived together, leave the whole paragraph blank.

Paragraph 3: "Prior Court Proceedings and Agreements"

This paragraph is asking you to describe any old order or agreements you and your ex might have, but only the ones that are relevant to your case. Criminal orders or orders about the adoption of a child, for example, are not relevant. However, if you have a marriage agreement or a separation agreement, or an order made between you in the Provincial Court or in another province, those are the things you should be talking about. The orders that you should list are final orders, or if there is no final order, then the last interim orders that were made.

Paragraph 5: "Place of Trial"

If you're starting the claim, the place of trial is the name of the town or city where you'll be filing your claim.

Schedule 1: Divorce
You only need to fill out this schedule if you're asking for a divorce. If you and the other party were never legally married, or if you're married but don't want a divorce for some reason, skip the entire schedule.

Paragraph 1: "Personal Information"

The information required for "ordinarily resident in British Columbia since" is the date when you started to live full-time in the province.

Paragraph 2: "Grounds for the Claimant's Claim for Divorce"

If you're asking for a divorce for a reason other than separation, the information needed for "other grounds" is either "adultery" or "cruelty making continued cohabitation impossible."

Paragraph 5: "Children"

In this paragraph, you are supposed to write out the full names and birth dates your children, which includes adopted children and any children you or your ex brought into your marriage. You don't have to include adult children unless they are still dependent on you or your ex and cannot support themselves.

Orders Available in this Schedule

· Divorce

Schedule 2: Children

If you don't have children or aren't asking for any orders about the children, including orders for child support, skip the entire schedule.

Paragraph 1: "Identification of Children"

Under "child's relationship to the claimant" and "child's relationship to the respondent," what you're supposed to say is "natural child," "adopted child" or "stepchild."

Paragraph 3: "Current Arrangements for Parenting"

Here you should be describing, as simply as possible, how you and the other side are looking after the children now that you've separated. It can be really tempting to get down into the muck and dish some dirt, but avoid the temptation. If you say something mean and spiteful  even if it's true!  you risk annoying the other side and making your conflict worse than it already is.

Be accurate, be factual and avoid talking about things that aren't really relevant. Don't embellish the truth.

Paragraph 6: "Income of Person Asked to Pay Child Support"

If you're asking for an order that you pay child support to your ex, this paragraph applies to you. If you asking for an order that your ex pay child support to you, fill out the information about your ex's situation.

Where it asks you for the facts which explain why you believe your ex's income is a certain amount, you might say something like "because I prepared his income tax return for last year," "because he told me this was his income," "because her boss told me that this is what she makes" or "because this is the average wage of junior carpenters according to Statistics Canada."

Paragraph 7: "Proposed Child Support Arrangements"

"Special expenses" are the children's expenses for big-ticket items like daycare, music lessons, summer camp, school trips, tutoring, sports teams and so forth. Although not every expense will qualify as a special expenses, you should probably write them down anyway.

· Parental responsibilities, parenting time and contact under the Family Law Act

· Child support and the payment of special expenses

Schedule 3: Spousal Support
If you're not asking for spousal support, or if you're not married or don't qualify as a "spouse" under the Family Law Act, skip this schedule.

Paragraph 2: "Proposed Spousal Support Arrangements"

Describe how much support you'd like to get, or to pay, how often it should be paid and the length of time it should be paid for. The length of time for a spousal support order can be tricky. You might be specific, and say something like "for five years," or you might link the end of support to "when the claimant obtains full-time employment" or "two years after the claimant finishes job training," or you might just say "indefinitely."

Orders Available in this Schedule

· Spousal support

Schedule 4: Property

If you're not asking for orders about property (including family property, family debt or excluded property), skip this schedule.

Paragraph 1A: "Property and Debt Claims under the Family Law Act"

This part is only for claims to split family property and family debt; read the definition of these terms at ss. 84 and 86 of the Family Law Act.

If you are asking for anything other than an equal split, you have to explain why and it'll help if you read the reasons why the court can make such orders at s. 95(2) of the Family Law Act. You don't get to ask for more of the property because your ex cheated on you, or was unpleasant or lazy. You should limit your explanation to the one or more of the reasons set out in s. 95(2).

The "legal description" of property is the long description you'll find in your Notice of Assessment, property tax levy or the contract for the purchase of the property, that talks about lot numbers, blocks and parcel identifier numbers and looks like this:

an interest in property under the principles of unjust enrichment and trusts;

an interest in property resulting from a contract; or,

an interest in property under any law other than the Family Law Act or common law principles.

An "order for compensation instead of an interest in the property" means that you want to get cash for your interest in the property rather than to become a legal co-owner of the property in which you have the interest.

Orders Available in this Schedule

· Equal or unequal division of family property and family debt under the Family Law Act

· Division of excluded property under the Family Law Act

· An interest, or compensation for an interest, in other property based on other legal principles

· The registration of a Certificate of Pending Litigation (a kind of lien) against the title of real property under the Land Title Act

Schedule 5: Other Orders

This is where the form gets interesting, because this is where you can ask for the orders that weren't listed in the other schedules. Orders you could ask for under the Family Law Act include:

Married Relationships

· An declaration that a marriage is annulled or is void.

Children

· A declaration about who are the parents of a child, or an order that a parentage test be performed

· A declaration about who are the guardians of a child

· An order that somebody be appointed or removed as the guardian of a child

· An order that someone's parenting time or contact be on conditions, like not smoking or not drinking when with the child, or be supervised

· An order that a guardian must not relocate with the child without the court's permission or your agreement

· An order enforcing an agreement on parental responsibilities, parenting time or contact

· An order changing an agreement on parental responsibilities, parenting time or contact

· An order recognizing or superseding an order on parental responsibilities, parenting time or contact made outside British Columbia

· An order for the appointment of a mental health professional to prepare a needs of the child assessment

· An order for the appointment of a mental health professional or anther person to prepare a views of the child report

· An order for the appointment of a parenting coordinator when the final order or a final agreement is made

Child Support and Spousal Support

· An order that income be imputed to someone, usually for the calculation of that person's child support obligation or share of the children's special expenses

· An order for the payment of the mother's prenatal and birth expenses

· An order that support be paid wholly or partially as a lump sum

· An order that an obligation to pay child support or spousal support be retroactive, that is, that it start at an earlier point in time

· An order that an obligation to pay child support or spousal support must be paid by the payor's estate after his or her death

· An order changing an agreement for child support or spousal support

· An order for the payment of arrears of child support or spousal support

· An order for the cancellation or reduction of arrears of child support or spousal support

Property

· An order for the interim division or sale of family property, including to pay for out-of-court dispute resolution

· An order that only you have the right to live in the house, called an order for "exclusive occupancy"

· An order that someone pay the rent, taxes, utilities and other costs of the family home, or that someone be prevented from cancelling the utilities for the family home

· An order that someone be prevented from selling property or using it as collateral for a loan

· An order for the appointment of a joint expert to value property or a business

Safety

· An order restricting communication and contact between you and the other party

· An order that someone not go to a certain place or places

· An order that someone be prevented from carrying weapons

· An order that the police must remove someone from the family home

Court and Other Processes

· An order cancelling or discontinuing someone's claim

· A declaration that the British Columbia court doesn't have jurisdiction to hear a claim

· An order that someone must give you certain documents in his or her possession

· An order that you and the other party must try dispute resolution like mediation, collaborative settlement processes or arbitration

· An order that you, the other party and/or the child must attend counselling

Orders available under other laws and legal principles include injunctions, declarations about the status of contracts, orders about real property under the Land Title Act, orders about property under the law of trusts and unjust enrichment, changes of name and so on.

I've provided a long, but incomplete, list of the potential other orders the court could make. However, you must always think of the long- as well as sort-term effects of what you're asking for. Sometimes the anger and hurt feelings caused by just asking for a particular order are way worse that the problem you're trying to address. Sometimes, even though you're right, the effort and cost of getting an order is totally out of proportion to the actual problem.

As a general rule, you don't want to inflame things; you want the claim you're starting or answering to be handled as cooperatively as possible.

Update: 26 April 2014
Blank copies of the Notice of Family Claim and Counterclaim forms are available from my wikibook in PDF and Word formats, along with examples of what the forms look like when they're filled out correctly.

The very excellent people at Courthouse Libraries BC have added various bits and pieces of this post as annotations to the Notice of Family Claim form. Download the annotated form from the wikibook(PDF); you must save the form to your computer to see the annotations. Since the schedules to the Notice of Family Claim form are the same for the Counterclaim form, you can use Notice of Family Claim to fill out the schedules to the Counterclaim.

In a nutshell, this case is about a mother's application for the adoption of her child by her new spouse and, because the father was none too happy with the idea, an order that the necessity of his agreement with the adoption be waived.

The mother and father separated in 2006 when their son was a year and a half old. A few months later they signed a separation agreement  this is important  giving the mother sole custody of the child and unspecified access to the father. This is what the agreement said:

CUSTODY, ACCESS AND GUARDIANSHIP

2. [The mother] will have custody of [the child].

3. [The father] will have reasonable access to [the child].

4. If [the father] and [the mother] are at any time unable to agree on the particulars of access or on a variation of access, either may apply to a court of competent jurisdiction for directions.

5. All terms as to custody, access and guardianship may be varied by the written consent of both Parties duly witnessed and signed as an Amendment to this Agreement.

Although the father initially saw his son almost every weekend, the frequency of his visits began to decrease after the mother started a new relationship. The mother and father divorced in 2010, and around the same time, the mother and her new partner took the child and moved out of town. The father was not told of the move and had no idea where his son was living until litigation ensued. The mother married her partner in 2011, and the couple started a law suit in the Supreme Court seeking an order that he adopt the child and a decision as to whether the father remained a guardian of the child after the parties' signed their separation agreement.

The Decision at Trial and a Parenthetical Comment on a Psychologist's Recommendation

The father, who had started a law suit in the Provincial Court for an order giving him specified access to his son, objected to the adoption application. As a result, the mother's claim went to trial, and her claim was heard together with the father's claim for access. The trial judge dismissed the mother's law suit and made an order that the father have access to the child; the trial judge decided that it was unnecessary to determine whether the father was a guardian of the child or not. The mother appealed the decision.

(I pause here to note that, at trial, a psychologist recommended that the mother's new spouse be allowed to adopt the child and that the father should have some limited access to the child. This was the psychologist's testimony:

"... in the report [I prepared] I actually make the point that perhaps there could be an agreement almost quid pro quo that if [the father] would allow the adoption, then there would be a reciprocal cooperation on the part of [the mother] to facilitate this type of arrangement to take place. ... I was hoping that  that by saying that there would be a reciprocity where [the father] would agree on adoption in exchange for [the mother] promising to  to allow and facilitate and arrangement that would allow [the child] to know [the father] and the paternal family, that  that if there was that reciprocal agreement, that it would make sense that  that  because what he wants is  meaning [the father]  what he wants is he wants to be a part of the child's life, he wants to have some input, he wants the child to know him, and he wants to know the child. But if  if in exchange for that, he gave up the ability and allowed them to adopt, then perhaps we could  you know, there might have been some  some agreement in that regard ..."

In other words, the psychologist was recommending that the father should give up his status as the child's father, and the rights that go along with that status, in exchange for contact with the child. This recommendation trespasses upon the offensive; the father had a right to seek contact with the child merely because of his status as the child's father, and he is now being asked to give up that status to obtain the access he ought to have had in any event? The Court of Appeal shared my concern:

"[31] Frankly, this notion of [the father] consenting to the adoption in consideration for future contact rights is troubling. I do not view a natural parent’s interest in consenting or not to the adoption of their child as something that should be required to be bartered away for the right to be peripherally involved in the child’s future. Yet that is what [the mother] was proposing and it is precisely what [the psychologist] was effectively recommending. ...

"[33] With respect, it is inappropriate to effectively require (or even to simply encourage) [the father] to give up his parental ties to the child as the price for gaining [the mother's] 'co-operation' in facilitating his future contact with the child, to which, prima facie, he is entitled at law."

Let me climb off my high horse and return to the main topic. I apologize for the long-winded diversion.)

The Decision on Appeal

According to the judgment of the Court of Appeal, written by the province's Chief Justice, the mother's main argument on appeal was that the trial judge effectively ignored the child's best interests by dwelling on the mother's behaviour in "isolating the child" from contact with the father. However, the main issue for the court was the not the adoption claim, which it dismissed, but the question of the father's standing as a guardian of the child, and this is where the decision gets really interesting.

First of all, remember that the parties' agreement talked about custody and access but really didn't say anything about guardianship, even though that section of their agreement was titled "Custody, Access and Guardianship" and paragraph five said "all terms as to custody, access and guardianship may be varied by the written consent of both Parties." This agreement was made when the old Family Relations Actwas the law of the province. Section 27 of that act set out certain presumptions about how guardianship was to be shared during and after the parents' relationship (important bits in bold):

(1) ... whether or not married to each other and for so long as they live together, the mother and father of a child are joint guardians unless a tribunal of competent jurisdiction otherwise orders.

(2) ... if the father and mother of a child are or have been married to each other and are living separate and apart,

(a) they are joint guardians of the estate of the child, and

(b) the one of them who usually has care and control of the child is sole guardian of the person of the child unless a tribunal of competent jurisdiction otherwise orders.

Since the parties' agreement didn't make any decisions about guardianship, this meant, according to both the trial judge and the Court of Appeal, that the father continued to be a guardian of the estate of the child, under s. 27(2)(a). Of course, since the agreement gave custody to the mother, she had "care and control of the child" and was therefore the guardian of the person of the child under s. 27(2)(b).
(Time for another diversion. "Guardianship" of a child has always  well, at least since 1660  had two components, guardianship of the person of the child and guardianship of the estate of the child. Someone who is the guardian of the person of a child has the right to make decisions about where the child goes to school, how health care issues are managed, about the child's language and culture, how the child is disciplined, and so on; essentially, the guardian of the person of the child decides how the child is raised. Someone who is the guardian of the estate of a child is entitled to make decisions about how the child's property is managed, in the manner of a trustee of that property.)
This leads to the question of the parties' status under the new Family Law Act. Sections 251 and 252 are the main parts of the new act that translate orders and agreements made under the old act. Section 251, which applies here, says this:

(1) If an agreement or order, made before the coming into force of this section, provides a party with

(a) custody or guardianship of a child, the party is a guardian of the child under this Act and has parental responsibilities and parenting time with respect to the child under this Act, or

(b) access to, but not custody or guardianship of, a child, the party has contact with the child under this Act.

(2) For the purposes of subsection (1), a party's parental responsibilities, parenting time or contact with a child under this Act are as described in the agreement or order respecting custody, guardianship and access.

The parties' agreement gave the mother custody; she is clearly a guardian of the child. The court considered the father's status by comparing the rights of a guardian of the estate of a child under the old Family Relations Act to the rights of a "guardian" under the new Family Law Act.

This is what s. 25 of the Family Relations Act said about the rights involved in guardianship:

(2) Subject to this Act, a guardian of the estate of a child has all powers over the estate of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second, chapter 24, and 49 and 50 Victoria, chapter 27, section 4.

Frequent readers will recall that these two acts are the UK Tenures Abolition Act of 1660 and the Guardianship of Infants Act of 1887. (I talk about these acts in my post "Supreme Court Releases Important Decision on Paramountcy Problem between Divorce Act and Family Law Act" and in some of my other writing on this issue.) After considering an amendment to this part of the Family Relations Act that never came into effect, the court concluded that the rights involved in being a guardian of the estate are similar to those of a trustee:

"[50] ... Equating the guardian of the estate with a trustee of the child’s property recognizes the obligation of a guardian of the estate to protect and manage the child’s property for the benefit of the child and the right of the guardian of the estate to control the child’s property to that end."

The decisions guardians can make under the new act are "parental responsibilities," and are listed at s. 41. Of all of those parental responsibilities, the court held that the rights of a guardian of the estate of a child were most similar to those found at s-s. (k):

(k) subject to any applicable provincial legislation,

(i) starting, defending, compromising or settling any proceeding relating to the child, and

To this point, then, the Court of Appeal has reached these three conclusions:

· If you were married and have an agreement  or, by extension, an order  that gives the other parent sole custody but doesn't say anything about guardianship, you are a guardian of the estate of the child under s. 27(2)(a) of the Family Relations Act.

· As the guardian of the estate of the child, you are a trustee of the child's property and must "protect and manage the child’s property for the benefit of the child," and you have the right "to control the child's property" for that purpose.

· These rights and duties are the same as having the parental responsibility, under s. 41(k) of the Family Law Act, for handling legal proceedings on behalf of the child and protecting the child's financial interests.

Now we need to get back to the translation provisions of s. 251. The parties had an agreement giving the mother sole custody, but the agreement didn't decide anything about guardianship. This is what the court said about the intention of s. 251 and its effect on the rights distributed by the parties' agreement:

"[58] Section 251 is a transitional provision. It should not be lightly interpreted as taking away substantive vested rights. ...

"[59] ... did the separation agreement, properly construed, take away [the father's] then vested (under s. 27 of the FLA) right to guardianship of the estate of the child? I think not. In my view, one should interpret the separation agreement, by referring to guardianship without more, as implicitly continuing the guardianship regime then in place which afforded joint guardianship to [the mother] and [the father] of the estate of the child. Section 251 does not affect this status."

And now we can add a fourth point to the court's conclusions:

· If you are guardian of the estate of a child, as a result of an old agreement or order, you are a guardian under the Family Law Act, with the parental responsibility set out at s. 41(k), and other parental responsibilities under s-ss. (h), (i) and (j) as may be necessary for you to act under s-s. (k).

However, whether you're a guardian as a result of an old agreement or order under s. 251 or because you're one of the people who are presumed to be guardians under s. 39 of the new act, your standing can also be taken away under s. 51, which says this:

(1) On application, a court may

(a) appoint a person as a child's guardian, or

(b) ... terminate a person's guardianship of a child.

And in this case, the the court decided it should be taken away:

"[60] In my view, it would not be in the best interests of the child in all the circumstances to grant [the father] parental rights under s. 41(h), (i), (j) and (k) of the FLA."

At the end of the day, the result from the Court of Appeal was that the mother's application for the adoption of the child by her new spouse was refused. The father's standing as a guardian was terminated  although the court didn't quite put it that way, which is curious  and the order from trial giving the father contact with the child was continued, but on terms which included requiring the mother and her spouse to keep the father informed of certain decisions they might make in respect of the child.

Conclusion

This decision is enormously important, because I expect that many formerly married parents who had agreements and orders that just talked about sole custody and access probably read s. 251 as meaning that the parent with sole custody became the child's only guardian under the Family Law Act. The Court of Appeal has made it clear that such orders do not disturb the other parent's standing under s. 27 of the Family Relations Act as a guardian of the estate of the child, and that as a result of this standing, the other parent continues as a guardian under the Family Law Act, albeit as a guardian whose only parental responsibility is that found at s. 41(k).

The effect of continuing as a guardian under the Family Law Act is profound, for the following reasons.

· Only guardians have parental responsibilities under the act. (s. 40(1))

· As a guardian, you have parenting time with the child, not contact. Someone with parenting time also has "the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child." (s. 42(2))

· Only a guardian can apply to court for "directions respecting an issue affecting the child." (s. 49)

· Only a guardian can object to another guardian's plans to move with the child, or apply for an order that the move be prevented. (ss. 68, 69(2))

Nothing in the Family Law Act restricts these rights because a guardian has a limited range of parental responsibilities. These rights are available simply because of the person's standing as a guardian.

However, some caution may perhaps be warranted. In my view, the scheme of the new act splits up the traditional concepts of "guardianship of the person of the child" and "guardianship of the estate of the child." Normally, when an agreement or order under the old act gave someone "guardianship," he or she had both kinds of guardianship, unless the agreement or order expressly said something different. Under the new act, however, it seems to me that a "guardian" is really a guardian only of the person of the child.

Part 8 of the new act is titled "Children's Property," and deals with a person's rights and duties about children's property that are essentially the rights and duties of someone who is the guardian of the estate of the child. This is what s. 176 says:

Except as set out in section 178 [delivery of small property], a child's guardian is not, by reason only of being a guardian,

(a) a trustee of the child's property, or

(b) entitled to give a valid discharge on receiving property on behalf of the child.

If the child's property is worth more than than $10,000  the value of "small property," set out at s. 24 of the Family Law Act Regulation  a guardian is not automatically the trustee of the child's property. The trustee, whether a guardian, a parent or someone else, must be appointed by court order under s. 179; the child's guardians cannot make an agreement that someone will be the trustee of the child's property, the appointment can only be by court order.

As a result of Part 8 of the new act, it is not clear to me that someone who is the guardian of the estate of a child is necessarily a guardian with the power to exercise parental responsibilities. Without a doubt, the powers set out at s. 41 are rights that stem from a person's standing as guardianship of the person of a child, but the power of guardianship over children's estates is not a part of those rights and doesn't result merely from being the child's guardian. Part 8 provides a complete and separate code for the management of children's property that is not, or is scarcely, impinged upon by the parental responsibility of "identifying, advancing and protecting" the child's "financial interests" under s. 41(k)(ii).My thanks to my colleague, James Cudmore, for bringing this important case to my attention.

This new service gathers summaries and comments on new cases, and appears to include feeds from a variety of sources including law blogs, law firms and the Canadian Bar Association's National Magazine. Each article can be commented upon and comes with a nifty "concur" button that allows readers to indicate their agreement with the author's position. These articles are screened for quality to some extent, as CanLII requires contributors to have a "demonstrated capacity for legal analysis;" see below.

Here's how CanLII describes their new service:

"Through this project, CanLII is taking the first steps in drawing out the goodwill of the legal community to share their insights on Canadian case law.

"Lawyers and others routinely prepare and share summaries and commentary on the decisions of Canadian courts. You will find these insights in journals, magazines, blogs, newsletters, commercial legal search tools and many other places. But until now, you could not find multiple thoughts about a single case in one place, at the same time, at no charge to the user and directly linked to the full text of the case!

"These contribution come from national law firms, major regional firms, academics, leading practitioners and legal bloggers, research specialists, commercial publishers and law societies. These contributors were invited by CanLII to help us launch with a bang, but starting April 4th, we are accepting contributions from anyone with a demonstrated capacity for legal analysis."

Although the service is clearly in its nascency, it has the potential to give judges, lawyers and the public fairly speedy access to competent analysis and discussion of important cases and will certainly complement CanLII's better known legal search service.

The work of CanLII in providing free access to the law is unparalleled in Canada. They have done an absolutely fantastic job in providing free public legal information and promoting access to justice. CanLII, as it happens, is an effort of the Federation of Law Societies of Canada and is funded by every lawyer in Canada through their law society membership fees.

I've just received an email from a colleague in British Columbia. She writes:

I have recently come across a number of cases in my work that I wanted to get your insight on, if you have the time or interest. ...

I have been working with a number of Muslim families. ... I have had one situation where a husband ordered the wife and mother to return to Iran, so that the divorce could happen in Iran. In another case, the father went to Iran and obtained a divorce ... and then returned to Canada to register it with the Supreme Court.

Because I like to figure things out, I did some research and discovered that there is a significant financial and time advantage for Muslim men if they can obtain a divorce in a Muslim country rather than in Canada. It seems that the issues of child support, spousal support, custody, and property division are significantly skewed to favour males in Muslim countries. They only have to register the divorce in Canada, and, under comity, they have effectively stripped away all these rights for Muslim women and children living in Canada. Further, if the Muslim woman obtains a civil divorce in Canada, but not a religious divorce, when she travels back to her country of origin, she can be arrested as an adulteress and, even in 2014, may be subjected to stoning. ...

This does happen every now and then, and although orthodox Islam is just as misogynistic as orthodox Judaism and orthodox Christianity, the orthodoxy is more tangibly problematic in countries like Iran and Libya that have adopted various species of Shari'a law  Islamic law  as the law of the state. This creates a number of alarming problems for women in those countries, as Shari'a law gives husbands a substantial degree of control over their wives and children. Men, for example, are often presumed to be entitled to custody of the children after separation. Men may also direct that their wives and children not leave the country, directions that the state will often enforce.

As a result, there have been times in my practice when I’ve warned certain clients whose relationships seemed to be in trouble against taking that family trip back to their country of origin. Often the real purpose of the trip is as my colleague describes. The federal government maintains a surprisingly useful country report website for people planning on travelling. If you click on the country, then the “Laws & Culture” tab, you can get a good snapshot of the laws of that country. Here’s part of the entry for Iran:

Canadian women married to Iranian nationals who register their marriage with the Iranian authorities automatically become Iranian citizens and are deemed to be Iranian citizens according to Iranian law, even if they travel to Iran on a Canadian passport with an Iranian visa. Iranian immigration authorities often impound Canadian passports, particularly those of women who intend to reside in Iran. Women who are considered to be Iranian by marriage must have their husband's permission to travel and to leave Iran, even if they intend to use their Canadian passport.

Here's part of the entry for Libya:

Child custody decisions are based on Islamic law. It is extremely difficult for a Canadian woman, even if she is a Muslim, to obtain custody of her children through a court decision, unless she decides to stay in Libya. Regardless of parental marital status, children of Libyan fathers acquire Libyan citizenship at birth, and must enter and leave Libya on Libyan passports. Canadian mothers require their husband’s permission to take their Libyan children outside the country.

Interesting and useful information. Not every country under Shari'a law applies the law with its full rigour; not every country under Shari'a law has adopted all principles of Shari'a law. Check before you travel.

Now although the doctrine of comity is important, it is not a suicide pact. Comity requires respect for the decisions of foreign courts but not blind deference. In general, the courts of Canada will respect foreign orders in family law matters, but that respect is subject to considerations like these:

Was the foreign court required too consider the best interests of children when making an order about their care?

Did the person against whom the order was made have notice of the hearing?

Did he or she have the full right to ask and answer?

Is the order contrary to public policy?

The first and last points are particularly important. It is generally contrary to public policy, for example, to grant sole custody on the basis of religious principles rather than a consideration of the best interests of the children. For the same reason, Canadian courts rarely enforce the punitive terms of religious marriage agreements.

I think my colleague was right to identify this problem and this concern. In my view, the advice that must be given to women in fragile relationships who are planning a trip to a country governed by Shari'a law is to rethink the trip and consider the potential consequences. However, should the family, or just the husband, go and return with an order, that’s not necessarily the end of it. Women on the receiving end of such orders should be encouraged to make a fresh application for custody or guardianship, child support and spousal support on their return to Canada where the foreign order is unfair or prejudicial to their interests.

I am not a scholar of Islamic law, and welcome comments offering other perspectives.

Important Update: The Family Law Act came into force in March 2013 and replaced the Family Relations Act, which is the subject of this post...

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